Thursday, September 2, 2021

Seminar Focuses on Consumer Privacy and Inequality

Sterling Law Building courtyard view

The inaugural event of the Transatlantic Seminar Series on Consumer Law, Technology, and Inequality was held on Sept. 1, 2021. The seminar’s first event focused on consumer privacy and inequality and was moderated by Przemysław Pałka; Assistant Professor, Future Law Lab, Jagiellonian University in Krakow and former Fellow in Private Law at Yale Law School. Speakers were Hayley Tsukayama, Electronic Frontier Foundation; Ari Ezra Waldman, Professor of Law and Computer Science, Northeastern University School of Law; Christiane Wendehorst; Professor of Civil Law, University of Vienna and President of the European Law Institute; and Wojciech Wiewiórowski, European Data Protection Supervisor. 

The panel opened with reflections on different ways to think about data, especially in a context where platforms are often hailed as highly egalitarian business models that are affordable and accessible to all. The panelists agreed that data neither is nor should be treated as just a commodity and that a purely economic approach to data is insufficient. Consequently, all panelists view data collection and economic growth as potentially at odds and proposed different ways to solve the tension. While, for example, Professor Waldman championed a “human rights”-based approach to privacy that would rule out any balancing with economic considerations, Wendehorst stressed the need for a more comprehensive balancing approach that intervenes at different levels of economic activity. Tsukuyama and Wiewiórowski unequivocally rejected arguments about negative impacts of privacy protection on business activities as such arguments often neglect the potential harms that privacy violations can have for consumers. 

Discussion on the appropriate legislative framework for consumer privacy crystallized around the EU’s General Data Protection Regulation (GDPR), which some have put forward as a model for the U.S. Tsukuyama underlined the difficulties of translating the GDPR into the U.S.-context on account of starkly differing institutional circumstances. Criticism of the GDPR itself that the panelists expressed took issue with, among other things, the Regulation’s almost uniquely process-oriented approach (Waldman) and its focus on results or effects when assessing privacy infringements rather than user consent (Wendehorst). Wiewiórowski also questioned the efficacy of one unique piece of legislation to govern a set of complex realities, while Wendehorst, referring to current legislative proposals in the EU as examples, warned against the danger of inconsistencies among different pieces of legislation.

The Transatlantic Seminar Series on Consumer Law, Technology, and Inequality is co-sponsored by the Yale Law School Center for Private Law, the Max Planck Institute for Comparative and International Private Law Hamburg, Jagiellonian University in Krakow, Freie Universität Berlin, and the European University Institute. Over the course of five sessions, the Seminar Series seeks to bring together scholars, policy-makers and activists from Europe and the U.S. to interrogate the role that law plays, and could play, in increasing economic justice for consumers.